Copyright reformed: the narrative of flexibility and its pitfalls in policy and legislative initiatives (2011–2021)

ABSTRACT This article reviews selected copyright policy and legislation at the international, regional and national levels during the period 2011–2021. It identifies a common and consistent narrative that supported reform initiatives in the surveyed jurisdictions: the modernization of copyright requires greater flexibility so that the undertaking of certain acts without authorization is not unduly restricted and a fairer balance of rights and interests may be, as a result, achieved. Through the analysis of reform initiatives in different areas of copyright and across several different jurisdictions, it is shown how the flexibility narrative has on occasion had the effect of unduly altering the preventive nature of copyright’s exclusive rights, inappropriately referring to exceptions and limitations as rights of users, overlooking relevant legal obligations and introducing undue rigidity within the system of private autonomy. It is ultimately submitted that flexibility should not be conflated with fairness. As such, policy- and law-makers should be wary of superficially framing ongoing and future reform discourse around such a narrative without considering the shortcomings that it has led and might unduly lead to.

intense discussion of and around copyright at multiple levels and in several jurisdictions around the world. In turn, all this has translated into policy initiatives, legislation and case law, whichas a common groundhave sought to achieve or improve such a balance, including by injecting greater flexibility into the law.
This article reviews selected copyright policy and legislation at the international, regional and national levels during the period 2011-2021 (the reference period). It focuses on two of the principal stakeholders of the 'fair balance' narrative in the internet agerightholders and users. It considers two of the key themes, which have broadly dominated and justified policy initiatives and legislation: the protection of rightholders, especially in relation to online uses of copyright works and other protected subjectmatter, and the space available within copyright to undertake restricted acts without an authorization, including through exceptions and limitations (E&L). 3 The analysis reviews international and regional instruments, as well as national policy discourse and legislation (Part II) before turning to their assessment under core copyright principles and international and, where relevant, EU obligations (Part III). The objective is threefold: first, to identify common threads and justifications given for copyright reform initiatives and proposals at different levels during the reference period; secondly, to evaluate some of the reasons given to justify legislative intervention against fundamental principles and rules of copyright law; thirdly, to determine whether and to what extent the international and regional legislative frameworks allow national legislatures in particular to undertake certain initiatives.
Against such a framework, reform initiatives and proposals advanced in individual Member States of the European Union (EU), the United Kingdom (UK), South Africa, selected Asian countries (in particular, Singapore and Hong Kong) and Australia are identified and considered. Reference to other jurisdictions is made where relevant. The selection has been undertaken on the basis that relevant developments: (i) occurred during the reference period; (ii) are expression of the themes indicated above; and (iii) raise issues of broader relevance from a comparative perspective. While the analysis is not meant to be exhaustive and, importantly, does not consider economic arguments supporting reform initiatives, it seeks to offer a unifying lensthe narrative of greater flexibility as instrumental to providing a better balance of rights and intereststhrough which it may be possible to appreciate and assess, at least to some extent, how such themes unfolded in the policy and legislative discourse during the reference period. This contribution shows how certain initiatives stemming from the narrative of greater flexibility as supporting the quest for a fairer balance of rights and interests in copyright are problematic for a variety of reasons. While in some countries such concerns have led to the eventual abandonment or persistent stalling of reform initiatives, in other jurisdictions new approaches have been adopted, which may not be compatible with those countries' own obligations. Specifically, this contribution considers how such initiatives fare against key principles like the preventive nature of copyright's exclusive rights and the three-step test. It concludes that policy-and law-makers should be wary of superficially framing ongoing and future reform discourse around the narrative of greater flexibility without properly considering, among other things, the nature of copyright, the constraints under international and, where relevant, regional laws and the rigidity that such a narrative might be eventually (and paradoxically in certain instances) leading to.
II. The copyright reform discourse at the international, regional and national level: shared justifications and directions The reference period was characterized by significant copyright-related ferment: at least in certain regions, policy and legislative initiatives and the level of judicial activity intensified significantly compared to the early 2000s. This part provides an overview of some of the main international, regional (by that referring to the specific regional experience of the EU) and national copyright legislative and policy developments that occurred over this time.

A. The international dimension
Further to the seminal achievements of the 1990s, including the adoption of the TRIPS Agreement in 1994 4 and the WIPO Internet Treaties in 1996, the following decade was relatively uneventful. It was during the 2010s that international harmonization and multi-/bi-lateral standard setting efforts in the copyright field were revamped.
At the WIPO level, the 2010s saw a continuation of the discussion -first launched at the 2006 General Assemblyconcerning the updating of the international protection of broadcasting organizations, as originally found in the 1961 Rome Convention, 5 in response to the technological issues facing inter alia digital and the internet. At the time of writing, such a discussion has yet to translate into concrete outputs. During the reference period, two new treaties administered by WIPO were nonetheless adopted: Besides harmonization efforts under the aegis of WIPO, copyright gained growing relevance within trade-related instruments. Together with bilateral free trade agreements with substantial intellectual property (IP) chapters, attempts to introduce common standards through multilateral trade agreements were also made. 8 In 2016, for example, the Trans-Pacific Partnership (TPP) was concluded between twelve countries, which together representedat that time -40% of the global economy. 9 In 2020, the United States-Mexico-Canada Agreement (USMCA) also entered into force, replacing the 1989 North America Free Trade Agreement (NAFTA). 10 Overall, the picture that emerges when considering international developments during the reference period is a complex one. In parallel with efforts at the WIPO level, approximation of the copyright laws of different countries was also achieved through the negotiation and conclusion of trade instruments, as well as through regional harmonization initiatives. These are reviewed below from an EU perspective.
B. The regional lens: the EU experience Since the start of the policy discourse in the late 1980s 11 and the adoption of the first copyright directives in the 1990s, harmonization of national copyright laws at the European Community/EU level has been invariably supported by an internal market-building rationale. When proposing legislation, what is now referred to as the European Commission has consistently approached harmonization initiatives by considering that certain differences in the laws of individual EU Member States would impair or prevent the persons to undertake the reproduction, distribution and making available of published works in formats designed to be accessible to them. It also permits the cross-border exchange of such works by organizations that serve the beneficiaries of said E&L. Supported by a humanitarian objective, this treaty is the only international instrument to date that solely provides for E&L. Despite that over 2.2 billion people in the world are estimated to suffer from some visual impairment (World Health Organization, Blindness and Vision Impairment (14.10.2021) <https://www.who.int/news-room/ fact-sheets/detail/blindness-and-visual-impairment#:∼:text=Key%20facts,has%20yet%20to%20be%20addressed>), the broader impact of the Marrakesh Treaty is limited, also because several national legislatures already envisaged E&L in favour of persons with disabilities, including visual impairment. The treaty in any case leaves contracting parties' obligations under other international instruments, including the three-step test in Article 13 of the TRIPS Agreement (n 4), unaffected. 8 Some, like the Anti-Counterfeiting Trade Agreement, proved however unsuccessful. 9 After the US withdrew from the TPP in 2017, the remaining eleven countries agreed to a revised agreement, which entered into force in 2018 as Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Insofar as IP is concerned, the CPTPP incorporates the provisions of the original TPP's Chapter 18. Nevertheless, the CPTPP countries agreed to suspend some of its key provisions, thus making them inapplicable under international law. 10 As a result of its copyright provisions, in 2020 Mexico undertook a reform of its copyright law (Ley Federal del Derecho de Autor, as reformed by Decreto por el que se reforman y adicionan diversas disposiciones de la Ley Federal del Derecho de Autor (01.07.2020)), inter alia introducing a notice-and-takedown system, in part modelled after the 1998 US Digital Millennium Copyright Act, and provisions on the circumvention of technological protection measures (TPM). Besides the case of the USMCA and Mexico, during the reference period, TPM also featured prominently in the negotiation of international instruments (Article 15 of the Beijing Treaty; Article 7 of the Marrakesh Treaty), other trade agreements (e.g. the already mentioned CPTPP itself (n 9) and the Comprehensive and Economic Trade Agreement between the EU and Canada), and national reform debates. Specific provisions on TPM are included in the DSM Directive (n 2; Article 7(2)) and the Singapore Copyright Act 2021 (Division 4); their potential review is also currently under discussion in Australia (Australian Government -Department of Infrastructure, Transport, Regional Development free movement of content protected by copyright and related rights and the provision of related services. 12 Other justifications and rationales have nonetheless supported harmonization initiatives too, including ensuring greater flexibility and the overall competitiveness of the EU copyright system vis-à-vis third countries (notably, though not solely, the US) and remedying imbalances in the copyright marketplace. During the reference period, the former supported action in relation to orphan works 13 andmore recentlytext and data mining (TDM, on which see further below). The latter was pivotal to the adoption of an EU press publishers' right, the regime for online content sharing service providers (OCSSPs) and provisions on contracts of authors and performers. 14 In parallel to internal justifications, developments at the international level have also driven the EU legislative agenda. During the reference period, for example, the Marrakesh Directive and Regulation were introduced to implement into the EU legal order the Marrakesh Treaty. 15 The CJEU has also played a fundamental role in shaping the content of EU rules, as well as pushingin certain notable instancesthe boundaries of harmonization further than what legislation alone could have suggested. 16 In all this, the most relevant recent reform is the one undertaken through the adoption of the DSM Directive in 2019. By focusing in particular on the digital and cross-border dimensions of copyright, that legislation inter alia lays down rules on E&L, rights in press publications, use of works or other subject-matter by OCSSPs and contract of authors and performers. In terms of objectives pursued, the DSM Directive sums up and is in line with the pre-existing acquis. 17 Within the themes identified for the present inquiry, certain provisions of the DSM Directive are deserving of particular attention and shall be discussed further in what follows. Selected national transpositions of Articles 15 (Italy) and Article 17 (German and Austria) will be assessed having regard to the nature of copyright's exclusive rights. Article 17 will also be considered when reviewing the qualification of E&L ( §III.A.). Articles 3 and 4 show how E&L may be linked to flexibility, innovation and competitiveness objectives. The wording of Article 4 also reflects a concern, on the side of EU legislature, that a new, mandatory E&L should not remove licensing opportunities tout court. As such, it will be discussed against the requirements of the three-step test and contrasted to the TDM E&L introduced by Singapore ( § §II.C.1. and III.B.2.).

C. National experiences
During the reference period, content availability broadly improved in several jurisdictions, also through the emergence of new licensing approaches and services, including streaming-based ones, allowing access to diverse catalogues at overall increasingly lower prices to both individual and institutional users. Empirical evidence suggests that broader availability of licensed offerings helps reduce the consumption of and/or access to unlawful content. 18 In all this, this period was characterized by initiatives to reform and, thus, modernize national copyright systems (below at §II.C.1.). Among other things, such initiatives consistently considered the need for greater flexibilityby that often meaning freeing up unlicensed uses of protected contentin copyright law and, with that, new and/or broader E&L. The discussion of whether open-ended fair use-style approaches should be preferable to closed lists of E&L also featured prominently in certain jurisdictions (below at §II.C.2.).

The national discourse on E&L: shared threads between countries
Starting with Europe, the experiences of the UK and Ireland are emblematic because they show how the discussion of the appropriateness (or rather: perceived lack thereof) of the then existing systems of E&L was approached in some national experiences. The 2014 UK copyright reform drew significantly on the recommendations contained in an independent review of UK copyright law conducted in 2011 by Ian Hargreaves. 19 Among other things, the Hargreaves Review had called upon broadening the closed catalogue of UK E&L, by taking fuller advantage of the possibilities available under EU law, specifically Article 5 of the InfoSoc Directive, and also promoting the adoption of a commercial TDM E&L at the EU level. 20 Against such a framework, the scope of a number of existing E&L (non-commercial research and private study, education and teaching, archiving and preservation, 18  disability, and public administration) was broadened. The following new E&L were also introduced and accompanied by a prohibition of contractual override: text and data analysis; parody, caricature and pastiche; private copying; and quotation. With the exclusion of private copying, which was quashed shortly after its introduction 21 , and parody and pastiche 22at the time of writing the new E&L remain unapplied in UK case law. An express call for an open ended, fair use-style provision was made in 2013 in Ireland, a country whose system of E&Llike that of all the other EU Member Statesrequires compliance with inter alia the closed catalogue of E&L and the three-step test in Article 5 of the InfoSoc Directive. That year, the Copyright Review Committee released a report entitled Modernising Copyright 23 , which recommended several changes to the Irish copyright system, including introducing an 'innovation exception' and a fair use provision, partly modelled upon §107 of the US Copyright Act. The former would allow deriving an original work which either substantially differs from, or substantially transforms, the initial work without the risk of infringing copyright. The latter would entail considering existing E&L as examples of fair use, which must be exhausted before the analysis reaches the question of fair use. Whether a use is fair would require the consideration of up to eight separate factors. Notwithstanding the constraints under EU law (also acknowledged in the Hargreaves Review, which ruled out the very possibility of adopting fair use in the UK because of them 24 ), the Copyright Review Committee excluded that the proposed E&L would be in breach of Ireland's own obligations as an EU Member State. 25 While neither of the proposals above was followed by legislative initiatives to amend the Irish Copyright Act, Modernising Copyright is indicative of the tension that has arisen in Europeincluding at the EU level 26between closed E&L systems, the claimed need for new E&L and the switch to open-ended fair use-style approaches (see below at §II.C.2.).
During the reference period, such a tension was also felt in countries like, for example, Brazil 27 , Thailand 28 , Hong Kong 29 , Singapore, Australia, and South Africa. Except for Singapore, none of them completed or realistically approached a transition from a closed system of E&L to an open-ended, fair use-style system.
Like some other countries outside of the EU (Israel, Philippines, Sri Lanka, South Korea, Taiwan), Singapore opted to include, in its own copyright system, an openended E&L. What is referred to as 'fair use' in the 2021 Act 30 exists alongside several other fair dealing provisions in Singaporean copyright law. Among the newly introduced E&L that cannot be restricted by contract, there is also one allowing uses of works for computational data analysis, including TDM. Section 244 does not pose restrictions in terms of beneficiaries and allows the making of copies of works and recordings of protected performances for the purpose of computational data analysis or preparatory activities thereto. The provision does not discriminate between the commercial and non-commercial character of computational data analysis. Overall, the Singaporean TDM provision appears to be significantly broader in scope than the current UK TDM E&L and the E&L found in the DSM Directive (see below at §III.B.1.).
Whether to abandon closed systems of E&L in favour of open-ended, fair use-style clauses has been a prominent feature of the reform discourse in Australia and South Africa (see also below at §II.C.2.). Both countries have historically modelled their E&L as closed systems based on the notion of fair dealing. Insofar as Australia is concerned, abandoning the closed system of E&L in favour of an open-ended fair use clause has been advanced as a proposal for several years. 31 At the time of writing, however, no reform initiatives concerning fair use have been officially undertaken. 32 Turning to South 27 In Brazil, the introduction of several new E&L, including for private copying and quotation, is currently being considered, further to the conclusion of a public consultation held in 2019. See 28 In 2018, the 1994 Thai Copyright Act was amended. Of particular interest is the structure and phrasing of Section 32.
Like the 2015 amendment (Copyright Act (No. 2), Government Gazette, 05.02.2015), the 2018 reform also extended the list of available E&L. While the Thai system remains a closed one, Section 32(1) borrows from the language of the threestep test to indicate that an act in relation to a copyright work which does not conflict with a normal exploitation thereof and does not unreasonably prejudice the legitimate rights of the copyright owner shall not be deemed infringing. 29  <https://www.alrc.gov.au/publication/copyright-and-the-digital-economy-alrc-report-122/4-the-case-for-fair-use/ reviews-that-have-considered-fair-use-2/>. 32 In late 2021, an Exposure Draft of the Copyright Amendment (Access Reform) Bill was nonetheless released: while maintaining a closed system of E&L, the Australian Government appears inter alia committed to introducing new E&L into that country's law, including a fair dealing E&L allowing a limited range of beneficiaries to undertake the non-commercial quotation of copyright works. See Discussion Paper -Exposure Draft (n 10), 14-19.
Africa, in 2017 a Copyright Amendment Bill (CAB) was released 33 , which would introduce into that country's copyright system an open-ended fair use provision (Article 12A) complementing the set of specific E&L. Because of concerns relating to the compatibility between the proposed reform and international law and that country's own constitution, the reform discussion is still ongoing. Overall, the reviewed experiences suggest that, not only were E&L a key point of discussion or reform in several jurisdictions, but also that common tensions characterized such a discourse, of which the most fundamentalthough not onlyone is that between closed systems of E&L and open-ended fair use-style approaches partly modelled after the US doctrine. In what follows the arguments advanced to justify the introduction of new and/or broader E&L or even open-ended systems in some of the surveyed jurisdictions will be summarized. In all this, some of the resulting concerns stemming from such reform initiatives led, in certain countries, to their persistent stalling or abandonment.

The case for greater flexibility in copyright law between new/broader E&L and open-ended approaches
In the surveyed jurisdictions, the stated need for new and/or broader E&L was supported by a common objective: to ensure a flexible copyright system in which certain uses of copyright works and other protected subject-matter would not be unduly restricted. Different issues did however arise in connection with that. Some were linked to the specificities of the relevant copyright framework: for example, both the UK and Irish debates were framed within the possibilities available and constraints imposed by EU law, in particular the exhaustive list of available E&L under Article 5 of the InfoSoc Directive. Others found their roots in questions of compatibility with a certain country's own obligations under international law as it was, for example, the case in Australia and South Africa. A lack of compelling evidence that greater innovation would result from open-ended systems also proved problematic, as the experience of inter alia Hong Kong indicates.
In what follows reference will be made, first, to the discussion, in different jurisdictions, of how to treat TDM. This will serve as a case study on the commonly perceived link between greater flexibility and innovation and competitiveness, as well as the question on how such objectives could be best achieved. Then, the more ambitious reform projects in Hong Kong, Australia and South Africa will be reviewed. This will serve to showcase how the adoption of an open-ended fair use-style system has faced questions of evidencebased justifications and raised issues of compatibility with international obligations.
TDM is an example of an area in which legislative intervention has been broadly justified by reference to the need of freeing up certain copyright-covered spaces to facilitate research and increase innovation and competitiveness. In some countries, existing systems of E&L, including fair use under §107 of the US Copyright Act 34 , have been deemed likely to accommodate certain unlicensed TDM activities. In other legal systems, specific E&L relating to content to which lawful access has been secured were adopted instead. This was for example the case of Japan 35 , some EU Member States individually at first and then through action at the EU level and, more recently, Singapore. The introduction of a specific E&L for TDM also featured in Hong Kong copyright reform discourse. However, the most recent governmental position is that, given the diversity of views expressed by concerned stakeholders, 'rushing into incorporating these issues in the amendment bill' is not recommended. 36 While TDM may be performed in different ways, the key value of predictive TDM processes lies in facilitating the treatment, recombination and extraction of further knowledge from large amounts of data and text, thus allowing the identification of patterns and associations between seemingly unrelated pieces of information. 37 From a technical and commercial standpoint, despite that classical TDM and machine learning have different utility, both use the same key algorithms to discover patterns in data. TDM also plays a significant role in the advancement of AI applications. 38 It should be noted at the outset that, on the one hand, some commentators hold the view that TDM would not even be covered by copyright law. 39 On the other hand, the debate around TDM did not develop in a context devoid of licensing practices, at least in Europe. Especially in the aftermath of a 2013 stakeholder-led dialogue, Licences for Europe 40 , scientific, technical and medical publishers included TDM for non-commercial purposes in their subscription licences for academic institutions and developed common infrastructures to facilitate access to the content to be mined. This said, different contractual conditions and policies were found leading to uncertainty and, as a result, giving rise to transaction costs. 41 The UK was the first EU Member State to rely on the EU acquis as it existed in 2014specifically: the research E&L in Article 5(3)(a) of the InfoSoc Directiveto legislate and adopt an express defence, which cannot be overridden by contract, allowing text and data analysis for non-commercial research. 42 The Hargreaves Review expressly noted 35 Since 2011 Japan has had in force an E&L (originally introduced in 2009) specifically allowing TDM: see Article 47 (7)  The 2021 Singapore copyright reform resulted in the introduction of a new E&L, which cannot be restricted by contract, allowing uses of works for computational data analysis, including TDM, also for commercial purposes. Such a reform was justified on consideration that 'text and data mining and its applications are crucial to fuelling economic growth and supporting Singapore's drive to catalyse innovation in the digital economy.' 46 As stated, TDM is a specific example of an area of discussion that has emerged in several different jurisdictions prompting a consideration of the interplay between copyright, innovation and competitiveness. It was approached from the perspective of purpose-specific E&L in most of the surveyed jurisdictions. All this said, there is also a broader, more ambitious discourse that unfolded during the reference period: should E&L systems be an exhaustive catalogue of permitted uses or should open-ended approaches, inspired by the still evolving 47 US fair use doctrine, be preferred instead?
This question featured prominently in several jurisdictions. The experiences of Hong Kong, Australia, and South Africa are particularly emblematic of the complexity of such a debate. Ultimately, none of these countries opted to abandon their closed systems of E&L in favour of open-ended, fair use-style approaches during the reference period. The reasons given were lack of evidence regarding the preferability of the latter and concerns under international law.
Despite arguments advanced that an open-ended system would offer more flexibility, better align with expectations and behaviours of users, and offer greater protection for freedom of speech and expression, the current position of the Hong Kong Government is to maintain a closed catalogue, '[g]iven that most jurisdictions worldwide continue patents/outcome/artificial-intelligence-and-intellectual-property-copyright-and-patents-government-response-to-consultation>. 43 Hargreaves Review (n 19), §5.3. 44 Ibid, §5.40. 45 It was within the Councilthat is where EU Member States find their representation in the EU law-making processthat the introduction of a further E&L without restrictions in terms of beneficiaries and purposes of the TDM initially to formulate their copyright exceptions based on a specified range of purposes and circumstances exhaustively and the lack of adequate empirical evidence to support the alleged economic benefits of a non-exhaustive approach'. 48 The Australian and South African debates appear to have also reached an impasse that may be difficult to overcome. In 2014, the Australian Law Reform Commission issued a report reviewing Australian copyright law and practice. It inter alia considered fair use 'an extension of Australia's fair dealing exceptions' 49 and, as such, 'not a radical exception', it being consistent with that country's international obligations. 50 In 2016, the Productivity Commission also recommended switching to a fair use system. 51 In response to the latter, the Australian Government announced that it would launch a public consultation in 2018. 52 Following the conclusion of the Copyright Modernisation Consultation 53 , respondents appeared divided regarded the opportunity of such a reform. Currently, no concrete plans are in place that would serve to reinstate such a discussion. 54 A similar situation emerged in South Africa. In 2019 the Department of Trade and Industry issued a response supporting the introduction of such a provision and linking fair use to allegedly a higher rate of innovation for countries which have such a system in place. 55 The following year, South Africa's President referred that and another bill introducing amendments to performers' protection to the National Assembly, on grounds that they might be incompatible with that country's own constitution. 56 Insofar as the proposed fair use provision is concerned, the President also raised doubts regarding its compatibility with South Africa's international obligations. In 2021, the Portfolio Committee on Trade and Industry adopted a recommendation that South Africa's National Assembly should rescind its 2018 decision to inter alia adopt the CAB and accepted the President's reservations. 57 Following the conclusion of a public consultation which ended in summer 2021, the most significant development has been the adoption, by the Portfolio Committee on Trade and Industry, of its report on the CAB in mid-2022. The Committee approved that and the Performers' Protection Amendment Bill in a revised form for second reading. At the time of writing, the proposal to introduce fair use in that jurisdiction remains part of the revised CAB. 58 To summarize: despite the peculiarities of the various copyright systems which have been reviewed, as well as the cultural, historical, theoretical and economic frameworks within which such systems have developed, reform initiatives throughout the reference period were characterized by some shared threads. The overarching narrative was to ensure a fairer and flexible balance between protection of copyright and related rights and third-party freedoms and interests. In certain areas, all this translated into concerns that existing forms of protection would be no longer appropriate. The quest for an appropriate balance involved considering the room available for unlicensed uses of copyright works and other protected subject-matter. Legislative initiatives like those in the field of TDM found support in a perceived link between E&L and innovation and competitiveness. In parallel to specific reforms, a more fundamental discourse emerged in several countries and related to the opportunity and feasibility of abandoning existing, closed catalogues of E&L in favour of open-ended, fair use-style, approaches. In most of the surveyed jurisdictions and with the notable exception of Singapore, such a discourse has yet to translate into actual legislative reform, due inter alia to constraints under international law (and EU law, at least insofar as Ireland was concerned: see above at §II.C.1.) and the lack of adequate evidence of the alleged merits of the proposals. The latter has been inter alia the case in the UK, where the Hargreaves Review was adamant that the adoption of fair use would not make East London a rival to Silicon Valley in itself, 59 and Hong Kong, where the view of the governmentas noted aboveis currently not to propose switching to an open-ended, fair use-style system. Among other things, it could be noted that this conclusion is consistent with economic evidence that shows how innovation and competitiveness of a given system depend on multiple factors, not just a country's system of E&L to copyright. 60

III. Reform initiatives in the shade of basic copyright principles
Having provided a high-level overview of some of the main developments and threads during the reference period, the analysis will now consider these against some basic principles of international and, where relevant, EU copyright. In particular, the attention will focus on the nature of copyright's exclusive rights and of E&L (below at § §A. and B.1.) and the relevance of the three-step test to the shaping of E&L systems, as well as the interplay between E&L and licensing opportunities and the room for private autonomy (below at §B.2.).

A. The nature of copyright's exclusive rights and of E&L
It is a settled principle of copyright law that the exclusive rights granted under it are proprietary 61 and preventive in nature. In  (BC), protection includes both the enjoyment and exercise of such rights. 62 As a result, rightholders are entitled to intervene between possible users of their works and the doing of restricted acts which such users might contemplate undertaking, in order to prohibit or authorize them. 63 According to consistent case law, including of the CJEU, a situation (other than one in which an E&L is applicable) where an author or rightholder is not in a position to exercise such controland is, instead, merely entitled to receive remuneration for the use made of their work without their permissionbreaches the preventive nature of copyright's exclusive rights. 64 Despite the above, during the reference period, several situations emerged in which copyright's exclusive rights were unduly transformed into mere entitlements to remuneration. If one considers the European experience, examples can be drawn from both situations that gave rise to referrals for a preliminary ruling to the CJEU 65 and, more recently, national transpositions of the DSM Directive. As regards the latter, notable examples are the Italian implementation of the press publishers' right as found in Article 15 and the German and Austrian transpositions of the liability regime for OCSSPs under Article 17 of the directive.
Article 15 of the DSM Directive introduces into the EU legal order a related right for the benefit of press publishers in relation to their press publications and which has information society service providers (ISSPs) as its addressees. Such a right has the same scope of the (preventive) rights of reproduction and making available to the public under, respectively, Articles 2 and 3(2) of the InfoSoc Directive. Italy transposed the directive in late 2021. 66 The Italian transposition of Article 15 provides for a system in which press publishers' rights are not preventive in nature: Article 43-bis of the Italian Copyright Act (Legge 633/1941) introduces a mechanism by which parties are mandated to conduct licensing negotiations. If a licensing agreement is not concluded, an administrative authority will determine the amount of the 'fair compensation' (equo compenso) due to press publishers for the use of their protected subject-matter by ISSPs. All this means that, under Italian law, press publishers are not in a position to authorize or prohibit the use of their press publications. 67 As a result, the rights of reproduction and making available to the public under that provision cannot be regarded as being (any longer) preventive in nature.
Turning to Article 17 of the DSM Directive, this provision introduces 'a new liability regime in respect of online content-sharing service providers'. 68 Moving from the assumption that OCSSPs as sub-sets of ISSPs directly perform acts restricted by copyright, they are under an obligation to obtain an authorization from relevant rightholders to undertake activities falling within the scope of application of the provision. The overall complexity of the architecture of Article 17 owes to the attempt, on the side of EU legislature, to balance different rights and interests. Although Article 17(4) is likely to restrict freedom of expression as guaranteed under Article 11 of the EU Charter 69 , such a restriction is justified in light of protecting copyright. 70 Furthermore, the provision as a whole contains appropriate safeguards: in its judgment in Poland, the CJEU identified six key ones, which EU Member States must also take into account when transposing and applying the resulting national provisions. 71 In turn, all this entails an obligation not to alter the normative content of Article 17. 72 It follows that national transpositions of Article 17, which incorporated requirements and conditions that are not to be found in the DSM Directive, would alter the equilibrium reached by EU legislature, while also impairing the fundamental objective underlying the adoption of the DSM Directive as a whole: the creation of a digital single market. For what is relevant to the present discussion, all this also creates a risk of breaching core copyright principles, including respecting the preventive nature of copyright's exclusive rights. The German and Austrian transpositions are, in this sense, particularly relevant.
Germany was the first MS to allow certain de minimis uses of copyright works through a statutory presumption (iuris tantum) of exclusion from the scope of protection. 73 Austria adopted a similar approach in its own transposition of Article 17. 74 The rationale of both initiatives is a flexibility-rooted one, aimed at safeguarding users' position. All this is however problematic for several reasons, including because it removes at the outsetoutside the framework of any E&L, including those under inter alia Article 17(7) (see further below)the possibility for rightholders to intervene, to borrow from the language consistently employed by the CJEU, between possible users of their works and the doing of restricted acts which such users might contemplate making, in order to prohibit or authorize them. 75 The national transpositions of Articles 15 and 17 of the DSM Directive discussed above are also significant from the perspective of compliance with the EU preemption doctrine. 76 Copyright, like IP more generally, is an area of shared competence between the EU and its MS. 77 EU preemption and the principle of supremacy are inter alia relevant to determining the freedom enjoyed by EU Member States when transposing EU legislation. The overarching limit is that national legislatures cannot alter the scope of rules adopted at the EU level. In the case of the national transpositions of Articles 15 and 17, none of the reviewed resulting legislations appear to pass the EU preemption test.
Turning to E&L, as discussed, calls for new and broader E&L, if not open-ended fair use approaches, were made during the reference period. In this context, arguments were also put forward that E&L would be more correctly classified as rights of users. Such a discourse has inter alia emerged in Europe in relation to Article 5 of the InfoSoc Directive as interpreted by the CJEU. 78 The adoption of Article 17 of the DSM Directive has contributed to stimulating such a debate even further, and will be taken as a case study on the qualification of E&L.
Article 17(7) states that the cooperation between OCSSPs and rightholders shall not lead to preventing the availability of works or other subject-matter uploaded by users, which do not infringe copyright and/or related rights, including where such works or other subject-matter are covered by an E&L. That provision mandates upon EU Member States to introduce or maintain into their own laws E&L (already available in and corresponding to provisions in Article 5 of the InfoSoc Directive) for (a) quotation, criticism, review and (b) caricature, parody or pastiche, for the benefit of users when uploading and making available content generated by them on OCSSPs' services.
Those who support a characterization of E&L as rights 79 use Article 17(7) as a basis to advance the argument that preventing the availability of works or other subject-matter uploaded by users, which do not infringe copyright and/or related rights would qualify as an infringement of user rights. 80 In Poland, the CJEU also considered that E&L (specifically those referred to in Article 17(7)) 'confer rights on the users of works or of other protected subject matter' 81 and that, as a result, uploads of 'lawful content' should not be prevented. 82 Despite the use of such language, it is inappropriate to consider E&L as fully-fledged rights. First, in relation to Article 17, the CJEU itself did not attach any specific consequences to the undue blocking of lawful uploads other than the 'right' to resorting to the complaint and redress mechanism under Article 17(9). 83 Secondly, in its earlier case law, the CJEU held that users are not entitled to invoke directly the application of the EU Charter rights and freedoms lacking a specific copyright E&L at both the EU level and in the applicable national law adopted in compliance with EU law. 84 Thirdly, like the rest of the EU framework, the DSM Directive refers to the need to strike a balance between the fundamental rights laid down in the EU Charter (recital 70), but does not refer to the E&L in Article 17(7) as 'rights' of users. Considering what precedes, it is thus correct to continue to characterize the E&L under Article 17(7) of the DSM Directive and the rest of the EU acquis, including Article 5 of the InfoSoc Directive, as exceptions to the rights granted to copyright holders, which are the expression of fundamental rights, including freedom of expression, but not full-standing subjective rights of users per se. 85

B. Systems of E&L in light of the three-step test
International instruments including E&L to copyright invariably refer to the three-step test, a phrase popularized during the relevant negotiations of the TRIPS Agreement. The requirement that permitted uses of copyright works and protected subject-matter are limited to certain special cases, do not conflict with a normal exploitation thereof and do not unreasonably prejudice the legitimate interests of the concerned rightholders was first enshrined in the 1967 BC revision. The three-step test was only provided in relation toand as a counterweight tothe formal recognition of the right of reproduction (Article 9(2)). 86 Subsequent instruments extended the application thereof to E&L to the other economic rights. The three-step test is referred to in the TRIPS Agreement (Article 13), the WIPO Internet Treaties (Articles 10 WCT and 16(2) WPPT), the Beijing Treaty (Article 13(2)) and the Marrakesh Treaty (Article 11).
The test consists of three cumulative requirements, which also need to be assessed in accordance with their logical order, that isindeedas steps. Before determining whether a certain E&L unreasonably prejudices the legitimate interests of the concerned rightholder, it is necessary to consider whether there is a conflict with a normal exploitation of protected content and, prior to that, whether the E&L at hand only applies to certain special cases. 87 83 Ibid, [93]. 1. The certain special cases requirement: relevance to the design of E&L systems The certain special cases requirement has admittedly given rise to several questions, the most relevant of which is, for the sake of the present discussion, that concerning whether an E&L with 'a general impact', as it is an open-ended approach, is compatible with international instruments. 88 Despite some scholarly literature interpreting the three-step test in an 'enabling' perspective and arguing in favour of the compatibility of open-ended approaches with the three-step test 89 , the meaning of 'certain special cases' is that 'a limitation or exception in national legislation should be clearly defined and should be narrow in its scope and reach.' 90 From a European perspective, such an interpretation is also consistent with the case law of the Grand Chamber of the CJEU, including but not limited to the Opinion concerning the EU's accession to the Marrakesh Treaty. Under Article 5 of the InfoSoc Directive, EU Member States enjoy the discretion to decide (with the exclusion of Article 5(1)) whether to incorporate an E&L from the list into their own laws. Nevertheless, such a discretion is limited in two fundamental ways: first, it cannot be used to compromise the objectives of that legislation (to guarantee a high level of protection 91 ) and the functioning of the EU internal market; secondly, a national E&L must also comply with Article 5(5)the threestep testof that directive. 92 All this has several implications. First, the scope of E&L derived from EU law could be limited even more than what is allowed when it comes to certain new uses of copyright works and other subject-matter; by contrast, the scope of such E&L cannot be extended by a Member State. 93 Secondly, to qualify for the application of a potentially available E&L, the use of protected content must be justified by its purpose. To exemplify, reference could be made to the (generally speaking, optional) quotation E&L under the InfoSoc Directive. 94 Subject to a number of requirements, Article 5(3)(d) of that directive allows Member States to introduce an E&L to the economic rights harmonized therein, so to allow 'quotations for purposes such as criticism or review'. Despite that the provision does not expressly mandate that the quotation be necessarily accompanied by comment or criticism, it intends 'to preclude the exclusive right of reproduction conferred on authors from preventing the publication, by means of quotation accompanied by comments or criticism, of extracts from a work already available to the public'. 95 This means that 'the user of a protected work wishing to rely on the quotation exception must […] have the intention of entering into 'dialogue' with that work'. 96 While the principles referred to above are specific to EU law and owe, at least in part, to the internal market-building rationale of EU copyright legislation, they also indicate that the meaning of 'special cases' is that of specific, purpose-driven E&L to copyright. 97 In turn, all this suggests that, not only open-ended fair use-style approaches may raise substantial doubts of compatibility with international instruments (as it was expressly considered in reform debates in Australia, South Africa and Hong Kong: see above at §II.C.2.), but that specific, yet broad E&L may be also problematic from this point of view. Two examples will be provided: one relating to UK quotation and one concerning the Singaporean TDM provision. Insofar as quotation is concerned, section 30(1ZA) of the UK Copyright, Designs and Patents Act 1988 sets a number of requirements for a certain use of a copyright work to be eligible for the application of the E&L, including that the quotation at issue is fair dealing with the work. This said, section 30(1ZA) also allows a quotation to be for any purpose ('whether for criticism or review or otherwise') and does not rule out in principle that it can encompass a work in its entirety. These characteristics of the UK quotation E&L might suggest a potentially broad applicability of the provision. This said and considering the guidance provided by the CJEU in relation to Article 5 (3)(k) of the InfoSoc Directive (from which the UK provision is derived), a quotation needs to be justified by its purpose, including having regard to the length/size thereof, to be regarded as non-infringing and fair dealing with a work. 98 As such, the textual content of section 30(1ZA) needs to be read and applied consistently with these requirements.
Turning to Singaporean law, like the 1987 Act, the 2021 Copyright Act does not expressly refer to the three-step test. Courts in that country tend to consider that the three-step test will be satisfied if the legislation is complied with, as the legislature would have taken the three-step test into account when deciding the limits of an E&L. 99 Considering the scope of the Singaporean TDM, however, questions of compatibility with the three-step test arise. Together with the potential applicability of the residual fair use provision, the circumstance that such an E&L does not pose restrictions in terms of beneficiaries and reasons for undertaking TDM makes it difficult to consider the provision as (i) applying to 'certain special cases' and (ii) such as not to interfere, as it will be also discussed further below, with the 'normal exploitation' of protected content directly by the rightholder themselves or through licensing. 97 Cf Ricketson -Ginsburg (n 87), §13.10, noting that in any case 'certain special cases' does not mean 'special purpose' of an E&L. 98  2. The normal exploitation of a work and the unreasonable prejudice to rightholders: licensing opportunities and contractual freedom The second prong of the analysis mandated under the three-step test is that the E&L at hand does not conflict with the normal exploitation of a work. This requires consideration of whether an E&L to an exclusive right under domestic copyright law is such that 'uses, that in principle are covered by that right but exempted under the exception or limitation, enter into economic competition with the ways that rightholders normally extract economic value from that right to the work (i.e. the copyright) and thereby deprive them of significant or tangible commercial gains.' 100 When an E&L has the potential to reduce the volume of sales or of other lawful transactions relating to protected works 101 up to the point that exempted uses enter into economic competition with non-exempted ones, then such an E&L is incompatible with the second step of the three-step test. 102 It is also likely to fail the third prong of the three-step test analysis, in that it causes or has the potential to cause 'an unreasonable loss of income to the copyright owner'. 103 It is against the requirements above that an assessment should be also undertaken of the choice of certain legislatures to introduce blanket prohibitions of contractual override of E&L. During the reference period some copyright reform initiatives led to the incorporation of language prohibiting contractual restrictions to the exercise of E&L.
In Europe this is, for example, the case of all E&L under Irish law 104 , some of the E&L introduced through the 2014 UK copyright reform andmore recently and with the exception of Article 4 (on which see further below) -E&L in the DSM Directive. 105 In Singapore, this was the choice made for the 2021 Act in relation to certain E&L. Vice versa, the current view of the Government of Hong Kong is not to restrict private parties' contractual autonomy on consideration 'that there is no empirical evidence to support that users are prevented from using existing copyright exceptions by contract override, and the importance of upholding freedom of contract in business operations'. 106 The latter approach appears preferable, at least in contrast to situations in which contractual restrictions are prohibited tout court. Legislation providing for a blanket ban on contractual restrictions to E&L could raise questions of compatibility with the international three-step test. Reliance on other areas of the lawincluding contract law and, where relevant, consumer protection lawmight be overall more appropriate to tackle unfairness in contractual relations. Such a conclusion may be elaborated further having regard to the discussion of TDM in Europe and in Singapore.
As stated, Articles 3 and 4 of the DSM Directive provide for two mandatory E&L for TDM at the EU level. The former is an exception in favour of research organizations and cultural heritage institutions that is purpose-limited (scientific research) and cannot be restricted by contract. The latter is an exception or limitation that has no restrictions in terms of beneficiaries and purposes of the TDM to be undertaken. 107 That provision also allows rightholders to exclude the application of the E&L through an appropriate reservation. 108 The specific rationale of this is explained in recital 18 and is inter alia linked to the consideration that licensing opportunities should not be unduly affected by the availability of an E&L. If one contrasts the EU approach to TDM to the one under the law of Singapore (discussed above at §II.C.1.), the latter provision is potentially significantly broader in scope than those in Articles 3 and 4 of the DSM Directive. Also considering the blanket prohibition of contractual override and the open-ended fair use clause in Singapore's copyright law, which no longer requires courts to consider whether licensing solutions would be available when making a determination of whether the use at hand qualifies as fair, one might wonder already what licensing space for TDM is left under that country's law. 109 In turn, this begs the question of whether such an approach could be regarded as compatible with international law, including the second and third prong of the three-step test analysis. The answer, unlike what it is for Article 4 of the DSM Directive, appears to be in the negative.

IV. Conclusion
This contribution has identified and reviewed some of the most significant threads emerged and developments occurred in copyright policy and legislation at the international, regional (EU) and national levels during the period 2011-2021. While having no pretension of exhaustiveness, this article has sought to investigate how the widespread narrative of ensuring greater flexibility within copyright has been used and how resulting outputs fare against key principles of and obligations under copyright law. The analysis has shown how, during the reference period, certain legislatures unduly transformed exclusive rights under copyright into mere entitlements to remuneration. At the same time, a tendency did emerge to refer to E&L as rights of users. Above all, the call for greater flexibility supported the introduction of new/broader E&L or even the adoption of open-ended systems that would replace closed catalogues of E&L. Where this occurred, not always the requirements under the international and, where relevant, EU three-step test were duly considered. Where they were, relevant reform projects faced an impasse or were paused altogether.
In conclusion, the picture that emerges at the end of the reference period is that of an anisotropic 110 copyright system: flexible from some standpoints and rigid from others, and not always duly so. Copyright does mandate that a fair balance is achieved between different and oftentimes contrasting rights and interests. Nevertheless, it is an erroneous undertaking to associate or even conflate fairness with a structural need for flexibility at all costs. Fairness and flexibility are different and separate issues: while flexibility may support fairness, it may also give rise to shortcomings, like those highlighted in the case law and official governmental reports reviewed in this contribution, that defeat the very possibility of achieving fair outcomes. As such, a serious policy discourse around copyright demands fairnessnot flexibility for the sake of flexibility. Any reform exercise that overlooked to consider the nature of copyright's exclusive rights, the aforementioned obligations and the problems that an improper flexibility narrative have raised in the recent past is thus not what the copyright system needs: the quest for a 'fair balance' in this area of the law deserves better.